Dear Friends,
No point even considering action against the French media moguls using the
name Fluxus. Here's why:
Several essential issues have to do with any legal case.
One issue is "cause."
You have to show cause for the suit, and this cause must be an act that is
a defined and accepted cause of action under relevant law.
So far, no one has shown cause with regard to these people in France. We
all have opinions. I'm asking for anyone with a clear case -- or an idea of
what a clear case might be -- to state it. To be clear about this, I'm
*not* gonna state my opinion. I simply doubt that there is legal cause.
A second issue is "standing."
The plaintiff must demonstrate that he or she has standing under law to
bring action. If there is cause, you can't bring a case if you have no
basis under law to do so. If the head of Fluxus.net meet at Emily Harvey
Gallery in New York where the mogul punches Ben Vautier in the nose, Ben
has cause under law and standing to bring action in New York. The New York
police department may have cause and standing to bring action for
disturbing the peace, providing they don't just shoot him to dispense with
trial. Emily Harvey may have cause and standing related to any problems
this creates for the gallery. I'd be angry if someone punched Ben, but my
irritation would not give rise to cause or standing. Neither Heiko nor
anyone else who might be offended by this at a distance would have cause or
standing for a case at law.
In the matter of anything related to Fluxus, Eva Beuys has neither cause
nor standing. While the question of standing might be an interesting case
for some of us, there is no possibility that Eva would have standing. The
Estate of Joseph Beuys has standing with relation to Joseph's work and
Joseph's work alone, not Fluxus. Whatever relation Joseph may have had with
Fluxus, those relations died with him at the time of his death. They are
not the property of his estate.
As to the issue of standing, I doubt that anyone has standing on the
possible cause of trademark infringement. There was no trademark. Several
famous cases have covered this issue, and on names used in business far
more widely and far longer than Fluxus.
One example is Merriam-Webster's unsuccessful attempt to defend the common
law trademark on Webster's Dictionary. Despite continuous publication since
1831, Merriam-Webster failed to trademark the name. They could have done so
at any time up to the point that another publisher decided to use the
unprotected name Webster's Dictionary. Since they never acted to protect
the name, the courts held that there was no trademark and they lost their
case. An unbroken record of publishing under a single, clear title by one
single company shows greater standing and greater cause than either issue
in relation to Fluxus.
Maciunas authorized several people to share with him supervision of Fluxus
copyright and to handle rights and royalties. I doubt that even those would
have standing in relation to the issue of trademark. It could be shown that
there is a history of copyright. Since there is no trademark, it would be
far harder to show standing, and I would guess that should anyone claim
standing, someone else equally significant to Fluxus would deny that
standing.
As it happens, Milan Knizak, Ben Vautier, and I are among those who might
have standing in a copyright case. This would probably not be so in a
trademark case. A letter from us to the French media moguls would make no
difference without force of law.
There is yet another issue here. That is the fact that this is not the
first company to use the Fluxus name. Many of us know about the others and
have long known about them. Some of us have even joked about this in public
speeches and in print.
This establishes precedent that we have not challenged the use of the name
Fluxus regardless any individual's opinion about the idea or about the
company or individual that uses the name.
We have not challenged use to date. On what basis are we to challenge now?
How are we to overturn the precedent we have permitted? What distinguishes
the French commercial use of the name Fluxus from the earlier German or
Italian or American commercial use of the name?
There is only one relevant issue here. That is that the same conditions
that permit them to use the name permit others to do so.
If they were to attempt to forbid anyone else to use the name, I would be
concerned.
If they attempt to challenge Allen Bukoff's use of the name Fluxus on
Fluxus.Org, I will join in his defense.
The same goes for Sol Nte and Owen Sith with regard to the box. And so on.
If, on the other hand, Fluxus.net tries to take legal action against the
German advertising firm or the Belgian accordion band, they'll have to
fight it out among themselves.
For the rest . . . well, as they say in France, "c'est la vie."
-- Ken Friedman
--
Ken Friedman, Ph.D.
Associate Professor of Leadership and Strategic Design
Department of Knowledge Management
Norwegian School of Management
+47 22.98.51.07 Direct line
+47 22.98.51.11 Telefax
Home office:
+46 (46) 53.245 Telephone
+46 (46) 53.345 Telefax
email: [EMAIL PROTECTED]
